Between 1975 and November 15, 2004, Presidents have submitted 115 reports as the result of the War Powers Resolution.129 President Ford submitted four reports, President Carter one, President Reagan fourteen, and President George H. W. Bush six reports. President Clinton submitted 86 reports. President George W. Bush submitted 29 reports.130 Of the reports submitted, only one cited Section Four which triggers the time limit.131
Time and time again, the President, Congress, and the courts have proven
unwilling to trigger the War Powers Resolution mechanism. In light of its inability to be consistently used, there have been three options invoked by members of the government and intellectual community. The first option holds that the resolution restricts the power of the President in foreign policy and should be repealed altogether. Supporters of repeal content that the President needs flexibility in the conduct of foreign policy and that the time limitation in the War Powers Resolution is unconstitutional and impractical. A conversation between Senator Javits and Senator Barry Goldwater demonstrates some of the concern with the impact the resolution has on the executive,
SENATOR JAVITS. So you really are opposed to my bill because you have less faith in the Congress than you have in the President; isn’t that true?
SENATOR GOLDWATER. To be perfectly honest with you, you are right.132
129 Richard F. Grimmett, “The War Powers Resolution: Presidential Compliance,” (CRS Report for Congress. November 15, 2004),1.
130 Ibid, i.
131 At the time when the report was turned in, the military action was completed and United States Armed Forces had disengaged from the area of conflict.
132 Holt, 35.
An alternate perspective for the repeal is that Congress has always had the power,
through appropriations and general lawmaking, to inquire into, support, limit, or prohibit specific uses of U.S. Armed Forces if there is majority support. The War Powers
Resolution does not fundamentally change this equation, but instead it complicates action, misleads military opponents, and diverts attention from key policy questions.133
On the other side of the aisle, there are members of Congress who assert that the War Powers Resolution has been effective by increasing legislative-executive
communication and congressional leverage. The resolution has served as a restraint on the use of armed forces by the President in some cases because of awareness that certain actions might invoke its provisions. Examples for this position include, the threat of invoking the War Powers Resolution may have been helpful in getting U.S. forces out of Grenada, in keeping the number of military advisers in El Salvador limited to 55, and in prodding Congress to take a stand on authorizing the war against Iraq.134 Professor of public policy and guest journalist for the New York Times, I.M. Destler, is in agreement with this perspective. He asserts that the War Powers Resolution “challenged, and then vanquished, Richard M. Nixon, Gerald R. Ford, and Henry Kissinger.”135 John W.
Finney also wrote in the New York Times that since the War Powers Resolution was passed, there has been evidence of a changing relationship between Congress and the White House on sharing war-making powers.136 In a follow-up piece written in 1979, Finney concludes that although the resolution had not been thoroughly tested, Congress
133 Grimmett, 48.
134 Ibid.
135 I.M. Destler, “Unruly, Fragmented Congress Wears Down President’s Foreign Policy,” New York Times, October 25, 1981, ProQuest Historical Newspapers, E3.
136 John W. Finney, “President’s Power: Tonkin and Today,” New York Times, April 25, 1975, ProQuest Historical Newspapers, 13.
was headed in the right direction in terms of the balance of power. “When President Carter decided several weeks ago to send a squadron of F-15 fighters to Saudi Arabia in a show of force and support, the plane went unarmed, partly because of the concern that if they were armed, the President would be in violation of the War Powers Resolution if he did not immediately inform Congress.”137
And finally, somewhere in the middle, the third view is that the War Powers Resolution has not been adequate to accomplish its objectives and needs to be
strengthened or reshaped. Proponents of this view assert that Presidents have continued to introduce United States Armed Forces into hostilities without consulting Congress and without congressional authorization. There are numerous potential amendments; some of the main arguments include returning to the original Senate version of the War Powers Resolution. As discussed earlier, the House bill was much more dramatic and the conference compromised on the bill. Returning to the original Senate version has been proposed several times, the first in 1977 by Senator Thomas Eagleton. A return to the original version would require prior congressional authorization for the commitment of forces into conflict abroad without a declaration of war (except in the circumstance of to respond to or forestall an attack upon the United States or its forces or to protect U.S.
citizens while evacuating them). This contention would also eliminate the 60-90 day period the President has to act militarily without congressional authorization.
Another proposed amendment is to shorten or eliminate altogether the time period that the President could maintain forces in hostile situations abroad without congressional approval. Proponents of this amendment contend the current resolution gives the
137 John W. Finney, “War Powers Pendulum Swings Back—A Little.” New York Times, April 8, 1979, ProQuest Historical Newspapers, E5.
President 60 to 90 days to do as he chooses and that this provides too much opportunity for mischief of irreversible action.138 Prohibiting the obligation or expenditure of funds for any use of U.S. armed forces in violation of the resolution or laws passed under it is another option those in favor or amending the War Powers Resolution advocate.
Perhaps one of the most compelling amendments to the resolution involves establishing a consultation group in Congress. Complaints made in the years following the resolution’s passage included that there was no set guideline on what consultation meant. Representative John B. Anderson of Illinois, the third-ranking Republican in the House said he was disappointed that “Mr. Ford had done no more than ‘calling up and saying here’s what we’ve decided.’ That doesn’t really fit the new era of divided
responsibility.”139 In the same situation involving President Ford, the Senate Democratic leader Mr. Nessan said, “I was not consulted. I was notified after the fact about what the Administration had already decided to do.”140
The War Powers Resolution was passed in an effort to provide clarification on the balance of power between the President and Congress. Never the less, it is clearly impractical for the President to consult with 535 members of Congress. Considerations of time and security argue that the list of the chosen for consultation be short.141 Senators Byrd, Nunn, Warner, and Mitchell have proposed the President regularly consult with an initial group of 6 members—the majority and minority leaders of both Chambers plus the Speaker of the House and President pro tempore of the Senate.142 Additionally, after the
138Grimmett, 49.
139 David E. Rosenbaum, “But Some Note the Law Requires Consultations,” New York Times, May 16, 1975, ProQuest Historical Newspapers, 15.
140 Philip Shabecoff, “Ford is Backed: Senate Unit Endorses His Right of Order Military Action,” New York Times, May 15, 1975, ProQuest Historical Newspapers, 89.
141 Holt, 34.
142 Senate Joint Resolution 323, introduced May 19, 1988.
initial meeting, the President is to consult with a permanent group of 18 members
consisting of the leadership and the ranking and minority members of the Committees on Foreign Relations, Armed Services, and Intelligence. This group will be able to
determine whether the President should have reported an introduction of forces and to introduce a joint resolution of authorization or withdrawal that would receive expedited procedures. Further defining what the consultation and communication between the President and Congress should look like can only help to strengthen the resolution.
CONCLUSION
In the view of many of its supporters, the War Powers Resolution was nothing more than an attempt to restate and thereby reassert what they considered to be the original powers of Congress, powers which had atrophied through lack of use.143 At the same time, the resolution provided a procedure for the exercise of these powers in the future. It is a procedure, furthermore, designed to force Congress to act, either to approve or to end any long-term U.S. military involvement abroad. The War Powers Resolution was enacted to make it more difficult for Congress to acquiesce in future situations like Vietnam.
The Supreme Court has so often abstained from hearing cases addressing the separation of powers between the President and Congress, especially regarding the issue of war powers. It has been the Court’s position that the contours of the presidential war powers have been presidentially, not judicially, shaped; their existence is for Congress and the people, not the Court, to oversee.144 In agreement with Rossiter, if the Supreme Court would be a little more clear voiced about the general power of this nation to make war, “it could turn around and deliver a great deal more relief in specific instances of individual injustice, which was all it was supposed to do in the first place… the less it pretends, the more it can defend.”145 Although it is unclear exactly how the Court would rule—more in favor of Congress or more in favor of the President (depending on the composition of the Court at the time), or potentially setting precedent for a more true
143 Holt, 40.
144 Rossiter, 126.
145 Ibid, 130.
balance of powers, one can argue that clarification on the issue would be in service of all three branches of government.
There have been few Supreme Court decisions directly addressing the executive war powers. Legal scholars, Ann and A.J. Thomas remind us that in the absence of Court rulings, one must look at extraconstitutional history to resolve the issue of war powers,
“for our government developed not only from constitutional interpretation by the court, but also from past precedents and actions of both the executive and legislative
branches.”146 With this idea of extraconstitutional history, it is easy to apply it to recent presidential administrations and wonder why Congress has not taken greater action in an effort to not repeat blunders in history. The most obvious example is the correlation often made between the Vietnam War and the Iraq War that was started in 2002 under President George W. Bush. Neither war was ever declared by Congress, and yet
exceptional numbers of United States Armed Forces were committed to these locations.
The Vietnam War was authorized by Congress initially under the Gulf of Tonkin Resolution, and the Iraq War was authorized by Congress under the Authorization for Use of Military Force Against Iraq Resolution of 2002.147 Each authorization of military force was initially supported, and as the conflict progressed, became increasingly more and more unpopular with the American public.
As stated before, it is unfortunate that the legislative branch seems to lack the confidence in their own information and judgments and therefore, is likely to be
intimidated by the executive authority. Even in the face of a greatly unpopular conflict, Congress has not executed its authority under the Constitution, reaffirmed by the War
146 Thomas, 117.
147 H.J. Res. 114, Pub.L. 107-243. October 16, 2002.
Powers Resolution, to withdraw funds, and requires that under Section Five that the President remove armed forces. This was never executed during the Vietnam War and has not been executed since. Prior to the passage of the War Powers Resolution, Congress was attempting to create a bill that would force an early end to the role of the United States in Southeast Asia. Although Congress and the American people appeared ready to end United States participation, the trouble with setting a withdrawal date came from the large number of American prisoners of war that were being held in North
Vietnam.148 If the United States were to create an absolute deadline for troop removal the prisoners would be at the mercy of the North Vietnamese. Instead, the language of the bill was changed to the United States should terminate military operations in Southeast Asia “at the earliest practicable date.”149 In similar fashion, Congress attempted to create a timetable for troop withdrawals in Iraq beginning in 2007—theU.S. Troop Readiness, Veterans' Health, and Iraq Accountability Act of 2007 (H.R.1591). Congress was able to pass this bill, and within the bill was a call for complete withdrawal of U.S. combat soldiers by September 1, 2008. President Bush vetoed the bill on March 1, 2007, and Congress was unable to come up with the necessary two-thirds to override the veto. The war in Iraq has proven another example of Congressional inability to use the tools they have been provided—the U.S. Constitution and the War Powers Resolution of 1973.
The evolution of American foreign policy brought the United States and the American presidency to its status in the 1970s. As Schlesinger put it, “The American presidency has come to see itself in messianic terms as the appointed savior of a world whose unpredictable dangers call for rapid and incessant deployment of men, arms, and
148 Thomas, 124.
149 Ibid.
decisions behind a wall of secrecy. This view seems hard to reconcile with the American Constitution.”150
In the absence of the Presidents of the twentieth century constantly building upon one another’s involvement in world affairs, it is nearly impossible to assert that Richard Nixon would have taken the presidency to an imperial level all on his own. What is certain, however, is that the passage of the War Powers Resolution of 1973 was a result of President Richard Nixon’s policies—both domestic and foreign. President Nixon’s blunders in the Watergate affairs at home, and his involvement in the Vietnam conflict that cost tens of thousands of American lives, and countless more Asian lives, prompted Congress to unite and pass a resolution limiting the scope of the President’s war-making ablities.
There are historians that argue that the Founding Fathers did not create a
Constitution with shared war powers among the President and Congress. Supporters of this argument like David Locke Hall argue that each branch has its own powers, separate and distinct, which affect the legal authority to wage war.151 I think this concept is easily dispelled. If the Constitution was laid out with clear cut lines of the roles of Congress and the President, there would not be a continual struggle in the balance of power between the two branches. If it was as clear cut as Hall attempts to portray it, it would be easy for the Supreme Court to rule on the nature of the powers that the executive and legislative branches possess, and both Congress and the President would understand their limitations without exceeding or undercutting them—but clearly this has not proven to be the case.
Instead, the twentieth century struggle to prevent further development of an imperial
150 Schlesinger, 66.
151 Hall, 22.
presidency has carried into the twenty first century. Although the War Powers
Resolution has been referenced by Presidents in over one hundred circumstances since its passage, it has not served the purpose that Senator Jacob Javits originally claimed—to rebalance Congressional and Presidential war powers.
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